United States Law and Policy on Transitional Justice

Principles, Politics, and Pragmatics

Zachary D. Kaufman

Presents a detailed overview of transitional justice institutions and the U.S. role in their development

Challenges the "legalist" paradigm by developing an alternative theory: "prudentialism"

Evaluates why and how the United States pursued and supported particular transitional justice options in specific contexts

Documents and analyzes six unique case studies: Nazi Germany, Imperial Japan, the bombing of Pan Am flight 103, the Iraq invasion of Kuwait, the former Yugoslavia, and Rwanda

Presents original empirical research of primary sources including almost 200 declassified documents obtained through the Freedom of Information Act and over two dozen interviews conducted with key decision-makers and observers

United States Law and Policy on Transitional Justice

Principles, Politics, and Pragmatics

Zachary D. Kaufman

Description

In United States Law and Policy on Transitional Justice: Principles, Politics, and Pragmatics, Zachary D. Kaufman explores the U.S. government's support for, or opposition to, certain transitional justice institutions. By first presenting an overview of possible responses to atrocities (such as war crimes tribunals) and then analyzing six historical case studies, Kaufman evaluates why and how the United States has pursued particular transitional justice options since World War II.

This book challenges the "legalist" paradigm, which postulates that liberal states pursue war crimes tribunals because their decision-makers hold a principled commitment to the rule of law. Kaufman develops an alternative theory—"prudentialism"—which contends that any state (liberal or illiberal) may support bona fide war crimes tribunals. More generally, prudentialism proposes that states pursue transitional justice options, not out of strict adherence to certain principles, but as a result of a case-specific balancing of politics, pragmatics, and normative beliefs. Kaufman tests these two competing theories through the U.S. experience in six contexts: Germany and Japan after World War II, the 1988 bombing of Pan Am flight 103, the 1990-1991 Iraqi offenses against Kuwaitis, the atrocities in the former Yugoslavia in the 1990s, and the 1994 Rwandan genocide.

Kaufman demonstrates that political and pragmatic factors featured as or more prominently in U.S. transitional justice policy than did U.S. government officials' normative beliefs. Kaufman thus concludes that, at least for the United States, prudentialism is superior to legalism as an explanatory theory in transitional justice policymaking.

United States Law and Policy on Transitional Justice

Principles, Politics, and Pragmatics

Zachary D. Kaufman

Table of Contents

List of Figures and Tables Acknowledgments Abbreviations Citations Glossary Actors Chapter I: Introduction Chapter II: Overview of Transitional Justice Options and the United States Role in Transitional Justice Chapter III: Competing Theories of United States Policy on Transitional Justice: Legalism Versus Prudentialism Chapter IV: The United States Role in Transitional Justice for Germany Chapter V: The United States Role in Transitional Justice for Japan Chapter VI: The United States Role in Transitional Justice for Libya, Iraq, and the Former Yugoslavia Chapter VII: The United States Role in Transitional Justice for Rwanda Chapter VIII: Conclusion Notes Bibliography Afterword Index

United States Law and Policy on Transitional Justice

Principles, Politics, and Pragmatics

Zachary D. Kaufman

Author Information

Zachary D. Kaufman, Senior Fellow, Harvard University, John F. Kennedy School of Government

Zachary D. Kaufman J.D., Ph.D., is a Senior Fellow at the Harvard University John F. Kennedy School of Government as well as a Visiting Fellow at both Yale Law School and Yale University's Genocide Studies Program.

Previously, Dr. Kaufman taught in Yale University's Department of Political Science and George Washington University's Elliott School of International Affairs, and he held fellowships, lectureships, or research positions at the U.S. Supreme Court, Yale Law School, Harvard Law School, Yale School of Management, Stanford University, and New York University. He also worked at the U.S. Department of Justice and was the first American to serve at the International Criminal Court.

Dr. Kaufman is the editor of Social Entrepreneurship in the Age of Atrocities: Changing Our World (2012), the co-editor (with Dr. Phil Clark) of After Genocide: Transitional Justice, Post-conflict Reconstruction, and Reconciliation in Rwanda and Beyond (Oxford, 2009), and the author of dozens of articles and book chapters. A term member of the Council on Foreign Relations and a member of the International Institute for Strategic Studies, he holds a D.Phil. (Ph.D.) in International Relations from the University of Oxford (where he was a Marshall Scholar), a J.D. from Yale Law School (where he was an Olin Fellow and Editor-in-Chief of the Yale Law & Policy Review), and a B.A. in Political Science from Yale University (where he was the student body president).

United States Law and Policy on Transitional Justice

Principles, Politics, and Pragmatics

Zachary D. Kaufman

Reviews and Awards

"Kaufman presents his cases in a highly systematic manner, with tight overall organization... Kaufman provides much useful insight... In evaluating the prudentialism and legalism models as ways to explain the United States' actions in the four primary cases, [Kaufman's] prudentialism emerges as a clear winner. Kaufman convincingly demonstrates that the United States in each [case] was open to multiple options and motivated by geo-political and other non-legal considerations." - Tom Peebles, former attorney, U.S. Department of Justice

"Kaufman impressively uses an enormous amount of primary source data, including hundreds of previously classified [U.S. government] documents he obtained and elite interviews he conducted with key decision-makers... Kaufman's prudentialism framework is an essential new tool of analysis for scholars and practitioners of [transitional justice] specifically, and international relations generally, to understand why states support certain options in the aftermath of mass atrocities." - Samantha Lakin, Human Rights Quarterly

"Kaufman's book is invaluable for those seeking to understand the legal structure of ICTs and why... This book is unique in the comparisons it affords of ICTs before and after the Cold War." - Hilary Hurd, Transparency International, International Affairs

"Kaufmans contribution to the academic literature should be perceived as a foundation in the study of both transitional justice and international relations. This book provides a compelling theoretical explanation of why some countries, particularly the United States, decide to, or not to, support particular transitional justice options." - Jonathan Beloff, Journal of International Criminal Justice

"In this strikingly original and meticulously researched book, Dr. Zachary Kaufman argues that the United States has led in the creation of some crucial international criminal tribunals for prudential reasons. The book provides essential insights for all interested in preventing mass atrocity, most importantly that war crimes tribunals have been and can be a prudent policy option for the United States." - Dr. Kathryn A. Sikkink, Ryan Family Professor of Human Rights Policy, John F. Kennedy School of Government, and Carol K. Pforzheimer Professor, Radcliffe Institute for Advanced Study, Harvard University

"Dr. Zachary Kaufman dissects, from the perspective of United States foreign policy, the design and establishment of four historic war crimes tribunals-Nuremberg, Tokyo, the former Yugoslavia, and Rwanda-and explains why they embodied uniquely crafted means of transitional justice. Kaufman's analytical premise for U.S. policy towards accountability for atrocity crimes is prudentialism, which he introduces as a blending of normative beliefs, politics, and pragmatics. Sometimes, however, that cocktail fails to result in a criminal tribunal, such as for Libya and Iraq following the end of the Cold War. Kaufman, a rising scholar, has written a tour de force that sets the stage for future tribunals and non-judicial approaches to transitional justice in a turbulent world." - The Honorable David J. Scheffer, Mayer Brown / Robert A. Helman Professor of Law, Northwestern University Pritzker School of Law; the first U.S. Ambassador at Large for War Crimes Issues

"Dr. Zachary Kaufman is an astute scholar and experienced practitioner on transitional justice issues. Through detailed, original research, he uncovers the factors driving U.S. policymaking on transitional justice. This important book-compellingly written, meticulously documented, and persuasively argued-is a must-read for anyone interested in international law, international relations, human rights, and U.S. foreign policy." - Kate Stith, Lafayette S. Foster Professor of Law, Yale Law School

"Why does the United States not consistently embrace prosecution for mass atrocities committed abroad? Dr. Zachary Kaufman has made a seminal contribution to this topic with this superbly well-documented and argued book. He improves our understanding of transitional justice, international governance, and U.S. foreign policy. The 2010 and 2015 U.S. National Security Strategies state that preventing mass atrocities is a responsibility that all nations share. Following in Kaufman's footsteps, we should seek to understand the transitional justice policies of China, India, Russia, and the one hundred liberal states parties to the International Criminal Court." - The Honorable Luis Moreno-Ocampo, first Chief Prosecutor, International Criminal Court; Senior Fellow, Jackson Institute for Global Affairs, Yale University

"Dr. Zachary Kaufman is at the forefront of the transitional justice movement in the international sphere. His scholarship, his work experience with the U.S. government and three war crimes tribunals, and his personal philanthropy in Rwanda and elsewhere inform his new book, taking it out of the ivory tower and into the human and institutional wreckage left by crimes against humanity." - Peter H. Schuck, Simeon E. Baldwin Professor Emeritus of Law, Yale Law School

"United States Law and Policy on Transitional Justice is a thought provoking study of postwar U.S. foreign policy concerning transitional justice, useful for students of diplomatic history, international law, and international relations alike. Dr. Zachary Kaufman examines U.S. support for international criminal tribunals and other transitional justice options to address atrocities abroad in the aftermath of World War II and the Cold War, arguing that U.S. policy is best explained by 'prudential factors' that mix law, pragmatism, and politics." - Dr. David W. Kennedy, Manley O. Hudson Professor of Law and Faculty Director, Institute for Global Law and Policy, Harvard Law School

"Dr. Zachary Kaufman's book makes an important contribution to our understanding of the how's and why's of America's transitional justice policies. His 'prudentialism' account of the making of U.S. transitional justice policies is deftly executed, backed up by substantial primary sources, and, ultimately, persuasive. A superb achievement." - Dr. Yuen Foong Khong, Li Ka Shing Professor of Political Science, Lee Kuan Yew School of Public Policy, National University of Singapore; former Professor of International Relations and Professorial Fellow of Nuffield College, University of Oxford

"In United States Law and Policy on Transitional Justice, Dr. Zachary Kaufman offers a historically-rich and nuanced account of how the U.S. government has addressed perpetrators of the most serious international crimes from 1945 up to the present day... At a time when both international organisations and national governments are trying to bring perpetrators of atrocity crimes to justice, and when the project of international criminal justice itself is under scrutiny, this book is an important resource for understanding the motivations and track record of U.S. law and policy." - Dr. Jennifer M. Welsh, Professor and Chair in International Relations, European University Institute; Senior Research Fellow, Somerville College, University of Oxford; Special Adviser to the UN Secretary-General on the Responsibility to Protect

"Illuminating and trenchant, Dr. Zachary Kaufman's book takes us behind the scenes and sheds needed light on the high stakes policymaking guiding the U.S. role in transitional justice and humanitarian intervention." - Ruti G. Teitel, Ernst C. Stiefel Chair of Comparative Law, New York Law School; author, Transitional Justice and Globalizing Transitional Justice

"Dr. Zachary Kaufman's original research and first-rate analysis deepen our understanding of the role played by the United States in establishing international criminal tribunals. His book casts new light on the interplay of politics, pragmatism, and the declared support for international norms in making the policy decisions to submit alleged perpetrators 'to the judgment of the law.'" - The Honorable Stephen J. Rapp, former Chief of Prosecutions, UN International Criminal Tribunal for Rwanda; former Chief Prosecutor, Special Court for Sierra Leone; former U.S. Ambassador-at-Large for Global Criminal Justice

"This important, original, and unique contribution to the literature on transitional justice examines one of its foremost practitioners, the United States, starting with the post-Second World War context in Germany and Japan to the challenges of Yugoslavia, Rwanda, and the modern day. Profound new insights, of relevance to many parts of the world, emerge from such a compelling comparative approach." - Dr. William A. Schabas, Professor of Human Rights and International Criminal Law, University of Leiden; author, The International Criminal Court: A Commentary on the Rome Statute and Unimaginable Atrocities: Justice, Politics, and Rights at the WarCrimes Tribunals; former Commissioner, Sierra Leone Truth and Reconciliation Commission

"In a world of recurrent barbarism, should perpetrators of atrocities be held accountable and, if so, how should they be brought to justice? In this thoughtful and impressively researched volume, Dr. Zachary Kaufman explores how American policymakers have sought to grapple with this vexing question. Kaufman provides a comprehensive analysis of transitional justice options and detailed analysis of six major cases, showing how politics and practical factors have shaped the impact of normative and legal considerations in American policy on transitional justice. This is an important argument, well made." - Dr. Steven E. Miller, Director, International Security Program, Belfer Center for Science and International Affairs, John F. Kennedy School of Government, Harvard University; Editor-in-Chief, International Security

"In a world that has accepted international criminal justice as law's predominant response to mass atrocity, Dr. Zachary Kaufman presents a valuable realist perspective on the factors, political and pragmatic, that influence state choices to pursue justice, via prosecutions, for the gravest episodes of abuse. Through succinct but well-documented and revealing accounts of U.S. decisions to support the key specialized international tribunals since World War II, this book analyzes considerations that affected those decisions and their inconsistencies and contradictions." - James J. Silk, Clinical Professor of Law and Director, Orville H. Schell, Jr. Center for International Human Rights, Yale Law School

"United States Law and Policy on Transitional Justice: Principles, Politics, and Pragmatics offers a magnificent and detailed examination of the domestic and international politics of international criminal tribunals, from Nuremberg and Tokyo to Arusha and The Hague. Dr. Zachary Kaufman shows that not only does the study of such tribunals and other transitional justice mechanisms belong in the realm of international relations, but it can also inform international relations theory itself." - Dr. David J. Simon, Director, Genocide Studies Program, and Lecturer, Department of Political Science, Yale University

"An important contribution to our understanding of the politics of international criminal justice. Dr. Zachary Kaufman emphasizes the calculations that American leaders made about the costs and benefits of backing war crime tribunals in the aftermath of the Second World War. These same cost-benefit calculations have continued to shape America's choices in this increasingly prominent foreign policy domain." - Dr. Leslie Vinjamuri, Co-Director, Centre for the International Politics of Conflict, Rights and Justice, and Associate Professor in International Relations, School of Oriental and African Studies, University of London

"Dr. Zachary Kaufman has provided an intricate examination of attempts to restore the rule of law after war and regime collapse. Selectivity of prosecutions, the loss of interest by sponsoring states, and the stubbornness of regime habits are all part of the problem that Dr. Kaufman tackles, in the hope of doing it better next time around." - Ruth Wedgwood, Edward B. Burling Professor of International Law and Diplomacy, School of Advanced International Studies, Johns Hopkins University; President, International Law Association; former U.S. member, United Nations Human Rights Committee

"Dr. Zachary Kaufman's excellent book highlights the United States' complicated role in legal approaches to transitional justice since the Second World War. The six cases in this book draw on unprecedented interviews with elite actors and documents unearthed through Freedom of Information Act requests. These materials highlight not only the profound influence of the United States in prosecuting atrocity perpetrators but also the impact of international justice on U.S. policymaking and practice. This book is a must-read for anyone who wants to understand why international criminal law persists today as a central component of transitional justice, despite major setbacks since Nuremberg and Tokyo, and the key role of the United States in encouraging international trials." - Dr. Phil Clark, Reader in Comparative and International Politics, School of Oriental and African Studies, University of London; co-founder, Oxford Transitional Justice Research, University of Oxford

"Dr. Zachary Kaufman pierces the legalist bubble that has dominated our understanding of U.S involvement in transitional justice globally. Highlighting the extensive deliberations about other options, like extrajudicial killings, and emphasizing the undeniably political factors driving pragmatic policymakers, Kaufman challenges those who would suggest that a normative commitment to justice was the defining factor in the American response to atrocities." - Akshaya Kusmar, Deputy United Nations Director, Human Rights Watch